S.B. v. Toronto (City), 2012 HRTO 2018

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.B.

Applicant

-and-

City of Toronto, Sandra Cuff and David Dolomont

Respondents

-and-

Toronto Civic Employees’ Union, Local 416 (CUPE)

Intervenor

DECISION

Adjudicator: Mark Hart

Date: October 24, 2012

Citation: 2012 HRTO 2018

Indexed as: S.B. v. Toronto (City)

APPEARANCES

S.B., Applicant

Self-represented

City of Toronto and Sandra Cuff, Respondents

Darragh Meagher, Counsel

David Dolomont, Respondent

No one appearing

Toronto Civic Employees’ Union, Local 416 (CUPE), Intervenor

Ryan Goldvine, Representative

1This is an Application dated June 28, 2009 and filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, sexual solicitation and reprisal. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on May 28, 2007.

2The applicant has been employed by the City of Toronto as a paramedic in its Toronto Emergency Medical Services (“TEMS”) division since June 18, 1999. In November 2002, the applicant began a preceptorship with the respondent David Dolomont and another paramedic as part of her critical care training. Part of the applicant’s complaint relates to a sexual assault against her by Mr. Dolomont that occurred in the back of an emergency vehicle on November 27, 2003. The complaint also addresses Mr. Dolomont’s later attempts to contact the applicant by e-mail and in person in October 2005.

3The applicant reported the sexual assault to the City in March 2006. The City, through the personal respondent Sandra Cuff, a senior human resources consultant, conducted an investigation into the applicant’s allegations and found that they were substantiated. The City terminated Mr. Dolomont’s employment effective December 7, 2006. Mr. Dolomont also faced criminal charges as a result of a report by the applicant to the Toronto Police Service.

4The applicant’s complaint raises allegations that the investigation conducted by the City and Ms. Cuff was inappropriately handled, unreasonably delayed and served to re-victimize her. This allegation also formed the basis of a grievance filed on the applicant’s behalf by the intervenor Toronto Civic Employees’ Union, Local 416 (CUPE) (the “Union”) on March 13, 2007. The grievance proceeded to arbitration before Susan Stewart, who released her decision dismissing the grievance on December 30, 2010.

5As a result of the grievance arbitrator’s decision, the respondents City of Toronto and Ms. Cuff filed a Request for Order seeking dismissal of the Application pursuant to s. 45.1 of the Code on the basis that part of the subject-matter of the Application (the allegations of an inappropriate investigation) already had been appropriately dealt with in the grievance arbitration proceeding before Arbitrator Stewart, and that the balance of the Application (the allegations arising from the conduct of Mr. Dolomont) should be dismissed for delay.

6An oral hearing to address these preliminary issues was held on May 17, 2012. I heard evidence from the applicant on the delay issue, and she was cross-examined by counsel for the City and Ms. Cuff. I also received and marked as exhibits various documents filed by the parties, including medical documents submitted by the applicant. I heard oral submissions from counsel for the City and Ms. Cuff. The applicant was unable to complete her submissions orally, and agreed to and did provide her submissions in writing on June 18, 2012. The City and Ms. Cuff were afforded an opportunity to make written submissions in reply, and did so on July 3, 2012. The Union indicated that it had no submissions to make on the preliminary issues.

7Before proceeding to address the issues under s. 45.1 of the Code and of delay, I wish briefly to address two matters. First, with regard to the status of the Union as intervenor, the Union had filed a Request to Intervene on December 22, 2011, which was not addressed prior to the hearing. At the hearing, I granted intervenor status to the Union for the purpose of addressing the preliminary issues, and reserved on the issue of the Union’s status if all or part of this Application is allowed to proceed on the merits.

8Second, with regard to the non-appearance of the respondent Mr. Dolomont, I note from the file that the Application does not appear to have been served on Mr. Dolomont. The Application initially was served on Mr. Dolomont c/o the City. Counsel for the City subsequently advised that he did not represent Mr. Dolomont and that Mr. Dolomont was no longer employed by the City. At the Tribunal’s direction, the City provided the Tribunal with Mr. Dolomont’s last known address. Since that time, all correspondence from the Tribunal has been sent by mail to Mr. Dolomont at this address, including notice of the May 17, 2012 hearing, and none of this mail has been returned to the Tribunal as undeliverable. On this basis, I am satisfied that Mr. Dolomont had notice of the May 17, 2012 hearing and the preliminary issues to be addressed at the hearing, and chose not to participate.

[Section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

9Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

10In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application.

11Since the Campbell decision, the Supreme Court of Canada has released its decision in British Columbia (Workers’ Compensation Board) v. Figliola, [2011] S.C.R. 422. This Tribunal has determined that the analysis adopted in Figliola applies in Ontario and binds this Tribunal: see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 25. As a result, in considering whether the other proceeding appropriately dealt with the substance of an application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding: Figliola at para. 38.

Was there another proceeding?

12It is clear that a labour arbitration is a “proceeding” within the meaning of s. 45.1. It has been recognized as such by this Tribunal (see for example, Paterno v. Salvation Army, 2011 HRTO 2298 and the cases cited therein). It is the type of proceeding in which the parties know the case to be met and have the opportunity to meet it: Figliola at paras. 37 and 49.

Did the other proceeding appropriately deal with the substance of the Application?

13The arbitral decision of Arbitrator Stewart dated December 30, 2010 clearly addressed the adequacy of the City’s response to the applicant’s disclosure of the sexual assault, including the applicant’s concerns about the City’s investigation, the time that it took, the manner in which it was conducted, and the nature of the City’s communication with her during the course of the investigation.

14As a result of an interim decision dated December 4, 2009, Arbitrator Stewart determined that the scope of the grievance did not extend to the sexual assault itself, nor did Arbitrator Stewart’s decision address the later conduct of Mr. Dolomont in October 2005. As a result, I will only consider the application of s. 45.1 of the Code in the context of determining whether the subject matter of the Application as it relates to the City’s response to the applicant’s report of the sexual assault already has been appropriately addressed by Arbitrator Stewart’s decision.

15The applicant takes the position that Arbitrator Stewart failed to consider Code issues in relation to the City’s response to her report of the sexual assault, and that Arbitrator Stewart failed to apply human rights principles in her analysis. I cannot accept this submission. In relation to an employer’s obligations in response to a report of an alleged violation of the Code, this Tribunal’s jurisprudence has established that an employer is under a duty to take reasonable steps to respond and address the allegations. The leading case cited often by the Tribunal when dealing with this issue is the Tribunal’s decision in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 which sets out the criteria to be assessed in determining the adequacy of an employer’s response.

16In her decision, Arbitrator Stewart cites the Laskowska decision and sets out the criteria to be assessed, and then proceeds to apply those criteria to the evidence before her in reaching her conclusion that the City’s response fell well within the range of reasonableness: see pp. 10 to 14 of Arbitrator Stewart’s final decision. Arbitrator Stewart found on the basis of the evidence before her that “the City took the complaint very seriously and devoted considerable time and resources to its investigation” and that Ms. Cuff was “thorough, competent and sensitive throughout the conduct of the investigation”.

17Arbitrator Stewart expressly addressed the applicant’s concerns about the time that it took for the investigation to be completed and the applicant’s desire not to have to relive the events, both of which are issues raised by the applicant in the context of her Application before this Tribunal. In relation to the time it took to complete the investigation, Arbitrator Stewart found that the City “had a clear obligation to ensure that a thorough investigation took place and that there was due process for the accused”, that “the investigation necessitated speaking with many witnesses, not all of whom were amenable to providing all possible assistance to Ms. Cuff”, and that the timing of the decision to seek legal advice was “suggestive of a prudent and careful approach, ensuring that the ultimate result would be as complete and unassailable as possible”.

18While appreciating the applicant’s understandable reluctance to relive the events surrounding the assault, Arbitrator Stewart found that “to ensure the integrity of the investigation, it was necessary for the [applicant] to speak about the details of the assault in more than one interview”.

19Arbitrator Stewart also addressed the applicant’s concerns about a lack of confidentiality in the investigation process, which also is an issue raised by the applicant in the context of her Application to this Tribunal. Arbitrator Stewart found that she was “unable to conclude that there had been any impropriety” and that “this was a significant matter and appropriately required a number of City personnel to have knowledge of it in order that their expertise and decision making authority could be brought to bear on the matter”.

20The applicant also submitted before Arbitrator Stewart that the City should have been providing her with more information about the criminal proceedings against Mr. Dolomont, which once again is an issue raised by the applicant before this Tribunal. Arbitrator Stewart found that the applicant “was in direct contact with the police and this was the more appropriate and direct channel of communication in connection with this aspect of the matter”.

21In reaching her conclusion on the issue before her, Arbitrator Stewart stated (at pp. 13-14):

. . . it is my conclusion . . . that the City conducted itself in a reasonable manner. The City did need to have details before it could commence an investigation, however, upon being advised generally of the allegation it took action in relation to the alleged perpetrator. The City’s need for a thorough investigation was crucial to ensuring the correct result, a result with significant implications. Ensuring the integrity of the investigation necessitated the expenditure of some time. Having satisfied itself that an employee subjected the [applicant] to a sexual assault, the City imposed the ultimate sanction of discharge on that employee. The message that is conveyed by the City’s decision is that such conduct is abhorrent and will not be tolerated. While that does not undo the damage suffered as a result of that assault, it is my conclusion that the City has acted reasonably and appropriately.

22I appreciate that the applicant does not agree with Arbitrator Stewart’s conclusion, and continues to believe that the City did not appropriately respond to her report of the sexual assault. However the issue before me is not whether I agree with Arbitrator Stewart’s decision or would reach the same conclusion if the issue were before me. Under s. 45.1 of the Code and in accordance with the guidance provided by the Supreme Court of Canada in the Figliola decision, it is not my role to evaluate the substantive correctness of Arbitrator Stewart’s decision. Rather, under s. 45.1, my role is limited to assessing whether or not the issue raised in the Application regarding the City’s response to the report of the sexual assault was addressed in Arbitrator Stewart’s decision.

23I find that Arbitrator Stewart’s decision did squarely address the issue of the City’s response to the report of the sexual assault, and that she relied upon and applied the principles established by this Tribunal in the Laskowska decision. On that basis, the part of the Application that raises allegations regarding the City’s failure to appropriately respond to the applicant’s report of the sexual assault is dismissed pursuant to s. 45.1 of the Code.

24In her submissions on this issue, the applicant raised an allegation that her disability, namely Post-Traumatic Stress Disorder (“PTSD”) that she experienced as a result of the sexual assault, was not appropriately accommodated by the City. In an Application under s. 53(5) of the Code, the allegations raised must be based upon the complaint as filed with the Commission: see DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281. In the applicant’s complaint as filed with the Commission, she does not allege discrimination because of disability nor does she raise any allegation that she was denied appropriate accommodation because of disability. Accordingly, this allegation is beyond the scope of the subject-matter of the Application, and is not an issue that I can consider.

25The applicant also has raised in her submissions allegations about a poisoned work environment stemming from continuing breaches of confidentiality, and references a specific incident that is alleged to have occurred on April 26, 2012. Once again, these allegations are beyond the scope of the applicant’s complaint as filed with the Commission, and are not matters that I can consider.

Delay

26Section 34(1) of the Code provides that a person may apply to the Tribunal either within one year after the incident to which the application relates or, if there was a series of incidents, within one year after the last incident in the series.

27It has been established that, with regard to transitional applications, the one year period for filing an Application is measured from the time of the events at issue until the date the underlying complaint was filed with the Commission: Taylor-Wright v. York University, 2010 HRTO 312.

28The applicant’s complaint was filed with the Commission on May 28, 2007. As a result, the first issue that I need to consider is whether there was a “series of incidents” regarding an alleged violation of the Code that extends to at least May 28, 2006.

29The sexual assault itself took place in November 2003, some three and a half years prior to the filing of the complaint. Even if the later conduct by Mr. Dolomont in October 2005 were considered to be part of a series of incidents that extends back to and includes the sexual assault, this would still be one and a half years prior to the filing of the complaint, and therefore outside the time period set out in s. 34(1).

30The first question is whether the applicant’s allegations regarding the City’s alleged failure to appropriately respond to her report of the sexual assault can be considered to form part of a “series of incidents” that extends back to and includes the sexual assault in November 2003 and Mr. Dolomont’s later conduct in October 2005.

31In interpreting what constitutes a “series of incidents”, this Tribunal has held that an “incident” refers to an alleged violation of the Code and that, in order to constitute a “series of incidents”, the alleged Code violations must be part of a pattern or series of incidents of a similar nature: see Alleyne v. City of Toronto, 2011 HRTO 560. Relevant to the question of whether the incidents of alleged Code violations are of a similar nature are considerations such as whether the incidents involve different individuals and/or different circumstances.

32In the instant case, the applicant’s allegations relate to a sexual assault by Mr. Dolomont in November 2003 and his subsequent conduct in October 2005 which is described by the applicant as “stalking” behaviour, for which the City may perhaps be deemed liable pursuant to s. 46.3 of the Code, and to the City and Ms. Cuff’s alleged inappropriate response to her report of sexual assault during the period from March 2006 to March 2007.

33I first note that these allegations engage separate rights under the Code: namely the right to be free from sexual harassment, sexual solicitation and sex discrimination in relation to the conduct by Mr. Dolomont; and an employer’s obligation to take reasonable steps to respond to an allegation of discrimination or harassment. While it can be said that these two rights are “related”, in the sense that the triggering of the employer’s obligation to respond results from the reporting of the underlying discrimination or harassment, it is my view that these two categories of alleged Code violations cannot be regarded as being “similar in nature”. One category of alleged Code violation relates to a co-worker’s conduct, while the other relates to management’s response to the reporting of that conduct. These alleged Code violations involve different individuals (Mr. Dolomont in relation to the former category of allegations and Ms. Cuff in relation to the latter), and different circumstances (the act of committing sexual harassment, solicitation or discrimination on the one hand, and the steps taken to fulfil management’s obligation to respond to such underlying acts once reported or brought to its attention).

34I also need to consider that, in the context of determining whether delay in filing an application has been incurred in good faith, this Tribunal has repeatedly held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are seeking redress from two different entities or waiting for the result of an internal investigation: see Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; and Foley v. CAW-Canada Local 222, 2011 HRTO 1224.

35While in those cases, it does not appear that the applicant had raised a timely allegation that the respondent had failed in its duty to appropriately respond to a reported allegation of discrimination or harassment, the underlying message behind these cases is that an applicant needs to take timely steps to file an application regarding alleged discrimination or harassment and should not wait for the conclusion of an internal investigation. It would be ironic, to say the least, if an applicant could circumvent this jurisprudence simply by raising an allegation that a respondent did not take appropriate steps to respond to the alleged discrimination or harassment and thereby make this latter allegation part of a “series of incidents” that encompasses the underlying discrimination and harassment allegations, and thereby make them timely. This in my view would be an absurd result.

36Accordingly, I find that the applicant’s allegation that the City and Ms. Cuff failed to take appropriate steps to respond to her report of sexual assault is not an incident that forms part of a “series of incidents” that extends back to the sexual assault in November 2003 or Mr. Dolomont’s conduct in October 2005.

37While this would lead me next to the question of whether the sexual assault in November 2003 and Mr. Dolomont’s conduct in October 2005 in and of themselves form a “series of incidents”, I do not believe that it is necessary for me to determine this issue. I will proceed in this Decision to determine the issue on the basis that the last incident of an alleged Code violation occurred in October 2005, some 19 months prior to the filing of the applicant’s complaint with the Commission. As this is beyond the one year time period set out in s. 34(1), I next need to consider the exercise of my discretion pursuant to s. 34(2) of the Code, which provides that a person may make an application after the expiry of the one year time period if I am satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

38In her submissions, the applicant has asserted that there is no “statute of limitations” for filing a charge of sexual assault under the Criminal Code. Whether or not that is the case, my jurisdiction does not derive from the Criminal Code, but rather from the Human Rights Code which does have a one year time period for the filing of human rights applications, regardless of the nature of the underlying allegations.

39As indicated in s. 34(2) of the Code, the first question is whether the applicant has satisfied me that the delay in raising her allegations was incurred in good faith, which requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

40In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant has a “fairly high onus” in providing an explanation for the delay. The applicant is required to show something more than simply an absence of bad faith. In Miller, it was held that the one year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with all due diligence when they seek to pursue a human rights claim.

41The applicant explains her delay in filing a complaint with the Commission on the basis that she suffers from PTSD as a result of the sexual assault, and that her disability impaired her ability to pursue her rights under the Code any earlier than she did. The applicant has provided significant medical documentation to support that she suffers from PTSD and has suffered significant symptoms and consequences as a result.

42However, the medical documentation filed by the applicant does not provide a sufficient or persuasive explanation to support that the applicant’s disability impaired her ability to file a human rights complaint during the period from October 2005 to May 28, 2007. In a letter dated May 1, 2012 from her psychologist, it is stated that the applicant initially attempted to deal with the assault on her own and attempted to avoid and numb herself from the event, which is characteristic of PTSD. However, the psychologist states that the applicant was unable to escape the event and its traumatic consequences, and she “began a series of unsuccessful attempts to be acknowledged including a criminal trial, WSIB case, arbitration etc.” The psychologist proceeds to state that “the dysfunction from [the applicant’s] PTSD and Major Depressive Disorder likely contributed to the delay in her initiating the Human Rights case”.

43The applicant also filed a letter dated April 27, 2012 from a psychiatrist she has been seeing since 2009, which states:

Although, since 2006, [the applicant] has tried a number of venues to seek redress for her abuse . . . she was not aware she could file a claim with the Human Rights Tribunal. More importantly, her extensive, very severe symptoms incapacitated her from making a claim to yet another group. It is only recently that her mood has improved and she is able to approve this.

44Finally, the applicant provided a letter from her family physician dated April 12, 2012, in which it is stated that the applicant filed her human rights complaint late “due to the fact that she was suffering from depression and post-traumatic stress disorder as a direct result of the sexual assault”.

45The evidence is clear that, while the applicant was suffering from PTSD as a result of the sexual assault, she nonetheless at least as of March 2006 was able to report the sexual assault to her employer and, with the assistance of her Union, initiate a Workplace Safety and Insurance Board (“WSIB”) claim. In addition, in the summer of 2006, the applicant reported the sexual assault to the police and gave a detailed video statement regarding the events. By this time, she also had provided a detailed written statement of the events to her employer.

46In her evidence before me, in explaining why she did not file a human rights complaint in March 2006 when she was taking steps to address the sexual assault in other venues, the applicant stated that at that time she was incapable of disclosing the details of the events either to her employer or in her claim to the WSIB. The problem with this evidence is that the applicant’s human rights complaint itself does not contain any details about the sexual assault apart from the date, time and location where it occurred.

47In any event, at least by the summer of 2006, the applicant was capable of providing a written statement of the events to her employer and a videotaped statement of the events to the police. When asked why she could not have filed a human rights complaint at that time, the applicant stated in her evidence that it was extremely traumatizing to her every time she went through the events. The problem with this evidence is that filing her human rights complaint would not have required her to go through the events, but merely to provide a written statement the same as or very similar to the details she had already provided to her employer.

48It appears to me from the applicant’s evidence that the real reason she did not file a human rights complaint at this time is that she was not aware of her ability to do so. The applicant’s evidence is that she was not aware that she had the right to file a human rights complaint until she was informed of this by a friend who is a lawyer. While the applicant could not recall specifically when she received this information, it appeared from her evidence that it was sometime shortly before she filed her complaint in late May 2007.

49With regard to the medical evidence, the psychologist states that it is likely that the applicant’s PTSD and Major Depressive Disorder contributed to her delay in filing her human rights complaint, but provides no explanation for why these disorders did not also prevent the applicant from reporting the assault to her employer in March 2006, filing a WSIB claim in March 2006, and reporting to the police in the summer of 2006. The applicant’s psychiatrist has only been treating her since 2009, and so cannot speak directly to the issue of the applicant’s abilities during the period from October 2005 to May 2007. However, her letter is telling in that she first comments upon the applicant’s lack of awareness that she could file a human rights complaint before stating that the applicant’s symptoms incapacitated her from making a claim to “yet another group”. No explanation is provided as to how the applicant could have the ability to make some claims, and yet lack the ability to file a human rights complaint. It is also unclear what the psychiatrist means by stating that it is only recently that the applicant’s mood has improved and she is able to “approve this”. If by “this” the psychiatrist means that the applicant has only recently gained the capacity to proceed with a human rights claim, this does not explain how the applicant in fact was able to do this some five years earlier. Finally, with regard to her family physician, while there is a broad statement that the delay in filing her human rights complaint was due to PTSD and depression, no explanation is provided as to why there was significantly less delay in reporting to the employer, filing a WSIB claim and reporting to the police.

50On the basis of the evidence before me, I do not accept that the applicant’s disability impaired her ability to file a human rights complaint at least as of March 2006. I understand the very profound symptoms and effects of PTSD and depression; and I am prepared to accept that at least until March 2006, these symptoms and effects prevented the applicant from taking active steps to engage the legal process and confront her attacker. But it appears that something shifted for the applicant by March 2006, perhaps as a result of her counselling with her psychologist, that enabled her at that time to take those steps by reporting the sexual assault to her employer and by filing a WSIB claim. By the summer of 2006, the applicant also had gained the strength, courage and ability to provide a written statement of the events to her employer and to report the sexual assault to the police and provide a videotaped statement. I appreciate that these were very difficult things for the applicant to do. But having taken those steps, I simply cannot find on the evidence that the applicant’s disability impaired her from taking the additional step of filing a human rights complaint.

51In my view, as stated above, the real reason that the applicant did not also file a human rights complaint at that time derives from her lack of awareness of her ability to do so. In this regard, this Tribunal repeatedly has held that “it is not enough for a person to establish good faith to say he or she was ignorant of their rights under the Code”: see for example Lutz v. Toronto (City), 2009 HRTO 1137; Ferrari v. Chrysler Canada, 2011 HRTO 227; Stewart v. Mitten Vinyl, 2010 HRTO 1628; Alliman v. Dew Engineering and Development, 2010 HRTO 1651.

52As a result, I find that the evidence does not support that the applicant has provided a sufficient explanation for the delay in filing her human rights complaint, and has therefore failed to establish that this delay was incurred in good faith. As I am not satisfied that the delay in filing the human rights complaint was incurred in good faith, it is not necessary for me to consider whether the respondents would experience substantial prejudice as a consequence of the delay.

53Accordingly, the remaining allegations in the Application are dismissed for delay.

ORDER

54For all of the foregoing reasons, I hereby order that this Application be dismissed pursuant to s. 45.1 of the Code and for delay.